Skip to main content

Search

Federal Practice Manual for Legal Aid Attorneys: 3.4.5 Preclusion

If exhaustion of judicial or administrative remedies is not required, the advocate has to assess whether to pursue such remedies voluntarily or to proceed with federal litigation. The reality of limited resources often strongly influences this decision. The cost of federal court discovery, hiring expert witnesses, and preparing the case for potential trial poses difficulties for legal services organizations.

Federal Practice Manual for Legal Aid Attorneys: 3.3.5 Mootness and Class Actions

Class actions1091 raise the question whether the claims of the class are moot when the claims of the individual class representatives become moot. Once certified as a class action, the case is less likely to become moot despite the named plaintiffs’ claims becoming moot, if the challenged conduct continues to threaten absent class members. The same may hold true if the named plaintiffs’ claims become moot before class certification, especially if the claims of the class are of short duration.

Federal Practice Manual for Legal Aid Attorneys: 6.9.1 Appellate Practice Introduces Issues Both Similar and Different Than Before District Courts

Section 6.9 updated 2013 by Gill Deford, 2015 by Jeffrey S. Gutman, 2022 by Sasha Samberg-Champion

Appellate practice raises some questions similar to those presented in the district court, but it also introduces new issues and procedures. Note that it involves consideration both of whether the lower court’s order was appealable and substantive argument on the merits.

Federal Practice Manual for Legal Aid Attorneys: 7.2.2 Numerosity

The numerosity requirement of Rule 23 does not focus exclusively on the number of members of the putative class, but, instead, on the impracticability of individual joinder.3379 The courts apply no strict numerical test for determining impracticality of joinder, although they have established general benchmarks that have “utilized some numerical guideposts to inform the 23)a)(1) inquiry,”3380 typically finding that classes of less than 20 are insufficiently numerous and classes of 40 or more

Federal Practice Manual for Legal Aid Attorneys: 4.0 Introduction

This Chapter discusses several basic issues relating to the drafting and filing of a federal court complaint, including the mechanics and strategy of drafting a complaint, as well as selection of parties, alleging facts and framing the request for relief. Sanctions should not be an issue for well-researched and factually-substantiated complaints. Nonetheless, the legal aid attorney should be familiar with the ethical dimensions and standards of filing a complaint in federal court.

Federal Practice Manual for Legal Aid Attorneys: 4.1.2 Purposes of the Complaint

The complaint has at least five purposes: 1) to commence litigation, 2) to tell a persuasive story to a varied audience, 3) to sufficiently set forth the jurisdictional, factual, and legal bases of the case to avoid or limit the possibility of a motion to dismiss, 4) to enhance the usefulness of the defendant’s answer to the complaint and the ability to obtain useful information though formal and informal discovery and 5) to lay the groundwork for the resolution of the case through settlement.

Federal Practice Manual for Legal Aid Attorneys: 4.1.3 Commencing the Litigation

A civil action commences upon the filing of the complaint with the court clerk.1254 The filing date of the complaint ordinarily determines whether the lawsuit is within the applicable statute of limitations. The date of filing also sets the clock running for other dates, such as the deadline for serving the defendant with the summons and complaint.1255 The date of service then triggers the timing of a series of pretrial procedures.1256

Federal Practice Manual for Legal Aid Attorneys: 4.1.4 Telling the Story

The complaint is the first opportunity that an attorney has to tell the client’s story and to explain why the lawsuit has been filed. It is the first document that will be seen by the judge and law clerks and will be referred to by them repeatedly throughout the case. The complaint may also have an audience in the clients, the defendants, opposing counsel, the public, the media, and other observers.

Federal Practice Manual for Legal Aid Attorneys: 4.1.5 Protection Against Motion to Dismiss

The complaint must be sufficient to survive a motion to dismiss. Your thorough review of the law in the substantive area involved should reveal to you the typical grounds for motions to dismiss and the potential weaknesses in your case. It is helpful to imagine yourself as the associate in the opposing counsel’s firm or office assigned to draft a motion to dismiss your case, thus providing yourself with an opportunity to identify and address your complaint’s weaknesses before you file it.

Federal Practice Manual for Legal Aid Attorneys: 4.1.6 Enhancing Usefulness of the Answer and Discovery

The manner in which the complaint is drafted can enhance the usefulness of the opposing party’s answer and facilitate initial disclosures. The defendant has a duty to answer factual allegations affirmatively and in good faith, and a plaintiff’s factual assertion is deemed admitted by the defendant when not specifically denied in the responsive pleading.1281 Hence, the more specific and defined your factual allegations are, the less “wiggle room” your adversary has to answer those allegations evasively.

Federal Practice Manual for Legal Aid Attorneys: 4.1.7 Basis for Settlement

You will be thinking about settlement from the moment you begin to prepare the litigation. The complaint serves as the basis and framework for settlement throughout the case, especially if prompt settlement is desired or possible. Although there are exceptions when settlement can provide more relief than you can request from the court, in general, the relief portion of the complaint serves as the outside boundaries of what you can request from the defendant in settlement negotiations.

Federal Practice Manual for Legal Aid Attorneys: 4.1.9 Individual, Group, and Class Plaintiffs

The first named plaintiff in a case involving more than one should be the best able to surmount jurisdictional challenges, such as standing and mootness, and most likely to see the case through to conclusion. Frequent changes to the case caption throughout the case can prove confusing. You may also wish the first plaintiff to have a particularly compelling set of facts and to be effective at articulating it publicly. At the same time, the concerns of other named plaintiffs may suggest a neutral ordering system.